Sacco v. Secretary, Department of Corrections
Filing
30
ORDER denying 25 request for an evidentiary hearing; granting 21 motion to dismiss petition; dismissing the petition 1 with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 8/5/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHARLES SACCO,
Petitioner,
vs.
Case No. 3:12-cv-1250-J-39PDB
SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner initiated this action by filing a pro se Petition
(Petition) (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on November 7, 2012.1
Petitioner challenges a 2010 state
court (Columbia County) judgment of conviction for attempted sexual
battery upon a child under twelve years of age.
As relief,
Petitioner seeks a nunc pro tunc competency hearing, claiming he is
"organically mentally impaired" and his defense counsel failed to
request "a proper competency hearing."2
Petition at 41.
In the
Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus
1
Giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date he signed it
and presumably handed it to prison authorities for mailing to this
Court. See Houston v. Lack, 487 U.S. 266, 276 (1988). The Court
will also give Petitioner the benefit of the mailbox rule with
respect to his pro se filings in state court when calculating the
one-year limitation period under 28 U.S.C. § 2244(d).
2
Petitioner states that he "was evaluated by one (1) single
psychologist[.]" Petition at 13.
(Response) (Doc. 21),3 Respondents argue that the Petition must be
dismissed as untimely. Petitioner has submitted a Reply to State's
Respondent's Motion to Dismiss and Request for Federal Evidentiary
Hearing (Reply) (Doc. 25).
See Order (Doc. 11).
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court.
The
limitation period shall run from the latest
of-(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C)
the
date
on
which
the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
3
The Court hereinafter refers to the Exhibits submitted in
support of the Response as "Ex."
2
through
the
diligence.
exercise
of
due
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
On September 13, 2010, Petitioner was adjudicated guilty of
attempted sexual battery upon a child under twelve years of age and
sentenced to fifteen years of imprisonment followed by fifteen
years of sexual predator probation pursuant to a plea agreement.
Ex. 4; Ex. 5.
at 2.
Petitioner did not file a direct appeal.
Petition
Thus, Petitioner's judgment became final thirty days later
on October 13, 2010.
See Fla. R. App. P. 9.140(b)(3); Saavedra v.
State, 59 So.3d 191, 192 (Fla. 3rd DCA 2011); Gust v. State, 535
So.2d 642, 643 (Fla. 1st DCA 1988) (holding that, when a defendant
does not file a direct appeal, the conviction becomes final when
the
thirty-day
period
for
filing
a
direct
appeal
expires).
Petitioner's one-year limitation period began to run on October 14,
2010, and ran until it expired on October 14, 2011.
Petitioner filed a pro se Rule 3.850 post-conviction motion on
January
12,
2012;
however,
even
assuming
arguendo
that
this
application for post conviction relief was properly filed, it did
not toll the federal one-year limitation period because it had
already expired.
Ex. 7.
See Tinker v. Moore, 255 F.3d 1331, 1334-
3
35 (11th Cir. 2001) (holding that, even though Florida law allows
a prisoner two years to file a Rule 3.850 motion, the prisoner must
file the motion within one year after his conviction becomes final
in order to toll the one-year limitation period), cert. denied, 534
U.S. 1144 (2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.)
(per
curiam)
("Under
§
2244(d)(2),
even
'properly
filed'
state-court petitions must be 'pending' in order to toll the
limitations period.
A state-court petition like [Petitioner]'s
that is filed following the expiration of the limitations period
cannot toll that period because there is no period remaining to be
tolled."), cert. denied, 531 U.S. 991 (2000).
Thus, this action
was not timely filed.
Petitioner apparently concedes that his Petition was not
timely filed, but argues that the Court should reach the merits of
the Petition, claiming entitlement to equitable tolling and the
"manifest injustice exception."
Petition at 9.
The United States
Supreme Court has established a two-prong test for equitable
tolling
of
the
one-year
limitation
period,
stating
that
a
petitioner "must show '(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in
his way' and prevented timely filing."
Lawrence v. Florida, 549
U.S. 327, 336 (2007); see Downs v. McNeil, 520 F.3d 1311, 1318
(11th Cir. 2008) (stating that equitable tolling "is a remedy that
must be used sparingly"); see also Brown v. Barrow, 512 F.3d 1304,
4
1307 (11th Cir. 2008) (per curiam) (noting that the Eleventh
Circuit "has held that an inmate bears a strong burden to show
specific facts to support his claim of extraordinary circumstances
and due diligence.") (citation omitted).
An allegation of mental incompetency, without a showing of a
causal connection between the incompetence and the failure to file
a timely application, does not justify equitable tolling. Lawrence
v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005); see also Fox
v. McNeil, 373 F. App'x. 32, 34 (11th Cir. 2010) (per curiam)
(finding the petitioner had not met his burden to prove that
equitable tolling was appropriate where he had "failed to establish
a causal link between his claims of mental incompetence and the
untimely filing of his federal habeas corpus petition"), cert.
denied, 131 S.Ct. 1047 (2011).
Indeed, "mental impairment is not per se a reason to toll a
statute of limitations."
Hunter v. Ferrell, 587 F.3d 1304, 1308
(11th Cir. 2009) (per curiam) (citation omitted).
Petitioner is
required to show that his mental illness was so profound and
debilitating that he was unable to file a timely habeas petition,
given his mental limitations. Lewis v. Howerton, No. 1:07-cv-2803JEC-WEJ, 2012 WL 4514044, at *16 (N.D. Ga. Sept. 30, 2012) ("the
question
before
the
Court
is
whether
the
mental
illness
[petitioner] suffered was so profound and debilitating that he
5
would have been unable to file a timely habeas petition, given
these limitations").
Thus, the question before the Court is whether Petitioner has
demonstrated that he was mentally incapable of filing a federal
habeas corpus petition in a timely manner during the pertinent time
period, which is October 14, 2010 (the day after his conviction
became final), through October 14, 2011 (the day the limitation
period expired).
The docket in the Columbia County case (case no. 2010-351-CF)
does not reflect that Petitioner was found to be incompetent to
proceed at any time before accepting his guilty plea.
Ex. 1.
Furthermore, there is no record of treatment or any sort of
diagnosis of psychological issues or mental disorders other than
Petitioner's conclusory assertion that his IQ score is well bellow
60, he suffers from mental retardation and a learning disability,
and he suffers from mental illness and incapacity due to organic
brain
damage
paired
diseases/disorders.
with
seven
different
Petitioner at 8; Ex. 13.
disassociated
The only records
before the Court are prison test scores conducted after the
relevant period at issue dated November 22, 2011, Ex. 7 at 27, and
June 27, 2012, Ex. 13, Exhibit G.
These test scores, standing
alone, are insufficient to demonstrate Petitioner was mentally
incapable of filing a federal habeas corpus petition in a timely
6
manner during the period from October 14, 2010 through October 14,
2011.
Petitioner
has
not
provided
any
documentation
or
other
evidence that he has been diagnosed as mentally retarded or
submitted any test results showing his IQ.
See Boone v. United
States, No. 05-00265-WS-N, 2014 WL 852359, at *5 (S.D. Ala. Mar. 5,
2014) (finding the petitioner failed to provide sufficient evidence
to demonstrate that he has a significant mental disability that
prevented him timely submitting his federal petition).
Even
assuming the test scores support a claim of mental retardation, he
has failed to show any connection between his alleged disability
and his inability to timely file a federal habeas petition.
See
Taylor v. Lightner, No. 14-00156-WS-N, 2015 WL 3407622, at *5 (S.D.
Ala. May 27, 2015) (concluding that the petitioner failed to
present evidence in support of his assertion or shown any causal
connection between the alleged mental deficiency and his ability to
timely file his petition).
In addition, "the record contains no evidence probative of
Petitioner's alleged mental disorder."
Scott v. Tucker, No.
3:11cv64/WS/EMT, 2012 WL 1314087, at *6 (N.D. Fla. Mar. 15, 2012)
(Not Reported in F.Supp.2d) (holding a conclusory assertion of
inability to understand and appreciate federal law and procedure
due
to
a
mental
disorder
is
insufficient
to
satisfy
the
requirements for finding entitlement to equitable tolling), report
7
and recommendation adopted by Scott v. Tucker, 2012 WL 1313500
(N.D. Fla. Apr. 17, 2012).
See Cardenas v. United States, Nos.
8:06-cv-589-T-24 MAP, 8:04-cr-141-T-24, 2010 WL 4537053, at *2
(M.D. Fla. Nov. 3, 2010) (Not Reported in F.Supp.2d) (finding a
conclusory
allegation
of
the
existence
of
mental
impairment
insufficient to support a claim for equitable tolling).
The following portions of the September 13, 2010 plea colloquy
in the Columbia County case tend to show that Petitioner was
competent when he entered his plea.4
The proceedings began with
Petitioner's counsel announcing that there is a written offer of
plea.5
Plea
and
Sentencing Hearing (Doc. 29-1) at 2.
The
prosecutor proceeded to announce the charge by information of
sexual battery upon a child under the age of twelve with a
mandatory
punishment
of
life
imprisonment,
and
Petitioner's
decision to plead guilty to the lesser included charge of attempted
sexual battery upon a child under the age of twelve, a first degree
felony, punishable by up to thirty years in prison.
Id.
He then
noted that Petitioner would be sentenced to fifteen years in
4
As far as the question of competency, there is nothing in
the record that shows that Petitioner was incapable of having an
appreciation of the charges against him; an appreciation of the
range and nature of the possible penalties; an understanding of the
adversary nature of the legal process; the capacity to disclose to
his attorney facts pertinent to the proceedings; the ability to
manifest appropriate courtroom behavior; and the capacity to
testify relevantly.
5
The written "Offer of Plea" is signed by both Petitioner and
his counsel. Ex. 4.
8
prison, and upon his release from prison, he would be on fifteen
years of sexual predator probation and subject to electronic
monitoring, as well as various other conditions and requirements.
Id. at 2-6.
plea.
The prosecutor referred to the factual basis for the
Id. at 7-8.
The court conducted the following plea
colloquy:
THE COURT: Mr. Sacco, you promise any
testimony you give today is the truth, so help
you God?
THE DEFENDANT: Yes, sir.
THE COURT: You've heard all the announcements
by the attorneys.
Everything you've heard
announced in court, have you agreed to that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you feel forced or threatened in
any way?
THE DEFENDANT: No, sir.
THE COURT: Satisfied with the representation
of your good attorney, Mr. Baker?
THE DEFENDANT: Yes, sir.
THE COURT: How old are you?
THE DEFENDANT: Forty-four sir.
THE COURT: And how far did you go in school?
THE DEFENDANT: I went –- I went a year to
college. I got six credits.
THE COURT: Fair to say that you're alert and
intelligent?
THE DEFENDANT: Yes. sir.
9
THE COURT: Can see, hear and understand the
Court?
THE DEFENDANT: Yes, sir.
THE COURT: Not under the influence of any kind
of medication, alcohol or illegal drugs?
THE DEFENDANT: No, sir.
THE COURT:
attorney?
Able
to
communicate
with
your
THE DEFENDANT: Yes, sir.
THE COURT: And you signed this offer of plea
freely and voluntarily, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand the extensive
requirements of probation and the sexual
offender and predator laws?
THE DEFENDANT: Yes, sir.
THE COURT: And all that will be given to you
here in writing.
The –- all the terms and
conditions including a $500 find are special
conditions of your probation.
If you don't
get a job and pay a little bit weekly on all
of this, you could be brought back here found
in violation of probation and sentenced to
prison. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: If you violate any of your other
terms or conditions, you could be brought back
here and sentenced to prison. You understand
that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
MR. DURRETT [the prosecutor]: Your Honor, if I
might, some concerns were raised to me through
10
meeting with the family as to Mr. Sacco's
ability to read and write. And I just want to
ensure that Mr. Sacco had the opportunity to,
at the very least, go over in great length
with his attorney the terms of the plea to
which he's entered today.
MR. BAKER [defense counsel]: Your Honor,
specifically, Mr. Sacco and I did discuss that
issue.
He was provided a copy of the plea
agreement well before I went to discuss it
with him.
And he and I went over the plea
agreement and we –- I also asked if he had any
questions.
Specifically about any of the
provisions
contained
within
the
plea
agreement. I would indicate to you that he
specifically had made some inquiries about
whether or not electronic monitoring would be
a –- would be required the length of the
pleaing [sic] and wanted me to attempt to
negotiate with respect to the electronic
monitoring. What I told him was, is that was
required by statute and could not be
negotiated.
And to me, that indicates an
understanding of the terms of the plea.
THE COURT: Is that correct?
THE DEFENDANT: Yes.
THE COURT: You said, yes?
THE DEFENDANT: Yes, sir.
THE COURT: You've gone over every word of this
plea with your attorney, is that correct?
THE DEFENDANT: I had somebody read it to me
where I am. But, yeah, I'm agreeing with it,
what's in that, sir.
THE COURT: You have any questions at all today
about it?
THE DEFENDANT: No, I'm just –- I want to go
down the road, sir.
THE COURT: Okay.
11
Id. at 8-11.
The Court concluded the proceedings by stating, in pertinent
part:
THE COURT: Well, the defendant says he has no
questions, satisfied with his lawyer, agrees
with
the
terms
and
conditions,
we've
stipulated to factual basis.
MR. BAKER: Yes, sir.
I've indicated that.
THE COURT: And we accept the plea then as
given freely and voluntarily. The sentence is
as announced and as you have signed to and
agreed, Mr. Sacco.
Id. at 11-12.
The above-summarized evidence before the Court supports a
finding that Petitioner was competent at the time he entered his
plea. Petitioner has not presented any evidence whatsoever to show
that he was incompetent at the time of his September 13, 2010 plea,
or at any time after that date.
He has failed to provide any
evidence that he suffered from a mental illness that was so
profound and debilitating that he was unable to file a timely
habeas petition.
In sum, Petitioner has not demonstrated that he
was mentally incapable of filing a federal habeas corpus petition
in a timely manner during the pertinent time period.
Petitioner asserts that manifest injustice will occur if this
Court does not reach the merits of his Petition.
In order to be
entitled to equitable tolling not only must petitioner demonstrate
that some extraordinary circumstance stood in his way, he must show
12
that he has been pursuing his rights diligently.
Propser v. Sec'y
of the Fla. Dep't of Corr., No. 2:10-cv-68-FtM-29DNF, 2011 WL
2601244,
at
F.Supp.2d)
*3
(M.D.
(citing
Fla.
Holland
June
v.
30,
2011)
Florida,
130
(Not
S.Ct.
Reported
2549,
in
2560
(2010)). Petitioner has failed to make a showing of due diligence.
See id. at *4.
Nothing in the record shows that he was attempting
to pursue his rights until he filed his pro se Rule 3.850 post
conviction motion in the state circuit court on January 12, 2012.
Spears v. Warden, 605 F. App'x 900, 905 (11th Cir. 2015) (per
curiam) (recognizing that equitable tolling is available only if
both
extraordinary
circumstances
and
due
diligence
are
established), petition for cert. filed, (U.S. July 6, 2015) (No.
15-5108).
As noted in Birt v. Oubre, No. CV 112-048, 2013 WL
395382, at *4 (S.D. Ga. Jan. 4, 2013) (Not Reported in F.Supp.2d),
report and recommendation adopted by Birt v. Oubre, 2013 WL 394521
(S.D. Ga. Jan. 31, 2013),
a petitioner who alleges a mental impairment
must still also show that he pursued his
rights diligently. See Doe v. United States,
469 F. App'x 798, 800–01 (11th Cir. 2012)(per
curiam) (petitioner failed to explain how low
IQ
"prevented
him
from
exercising
due
diligence"). While a mental impairment may
"yield a very low bar for what level of
diligence is reasonable," a petitioner "still
bears the burden of showing he did something"
in pursuit of his rights. Mvers v. Allen[,]
420 F. App'x 924, 927–28 (11th Cir. 2011)(per
curiam), cert. denied, 132 S.Ct. 2771 (2012);
see also Murphy v. Hall, CV 109–043, 2009 WL
1579494, at * 1 (S.D.Ga. June 4, 2009)
(petitioner
who
presented
documentation
showing
he
had
been
diagnosed
with
13
schizoaffective disorder failed to show due
diligence because he "provided no details of
his efforts to obtain relief, except to state
that he has been 'diligent in filing petitions
in state and federal court[.]'").
Here, even assuming a very low bar for the level of diligence
required, Petitioner has failed to meet it because he has failed to
show that he attempted to do something to pursue his rights and
obtain post conviction relief.
To the extent Petitioner claims his untimely filing of the
federal Petition is excused because of counsel's unresponsiveness
or ineffectiveness, in reliance on the holding in Martinez v. Ryan,
132 S.Ct. 1309 (2012), Petitioner's contention is without merit.
As recently noted,
The Eleventh Circuit has expressly rejected
petitioner's argument that Martinez applies to
overcome the statute of limitations bar.
Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.
2014) (holding that "the Martinez rule
explicitly relates to excusing a procedural
default of ineffective-trial-counsel claims
and does not apply to AEDPA's statute of
limitations or the tolling of that period.").
Sledge v. Jones, No. 3:14-cv92/MCR/CJK, 2015 WL 521057, at *4 (N.D.
Fla. Feb. 9, 2015), appeal filed by Sledge v. Sec'y, Fla. Dep't,
No. 15-11048 (11th Cir. Mar. 12, 2015).
As a result, the holding
in Martinez is inapplicable to this case and does not excuse
Petitioner's
untimely
filing
of
his
Petition.
As
recently
explained in Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.), cert.
denied, 135 S.Ct. 106 (2014):
14
As our discussion shows, the Martinez
rule
explicitly
relates
to
excusing
a
p r o c e d u r a l
d e f a u l t
o f
ineffective-trial-counsel claims and does not
apply to AEDPA's statute of limitations or the
tolling
of
that
period.
The
§
2254
ineffective-trial-counsel claims in Martinez
and Trevino were not barred by AEDPA's
one-year limitations period. Instead, those §
2254 claims were dismissed under the doctrine
of procedural default because the petitioners
never timely or properly raised them in the
state courts under the states' procedural
rules. At no point in Martinez or Trevino did
the Supreme Court mention the "statute of
limitations," AEDPA's limitations period, or
tolling in any way.
Petitioner appears to argue that the Court's failure to
address the merits of the Petition would result in a fundamental
miscarriage of justice.
To invoke the fundamental miscarriage of
justice exception to AEDPA's statute of limitations, a habeas
petitioner must make a credible showing of actual innocence with
new evidence that was not available at the time of his trial.
See
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32 (2013). To do so, "a
petitioner 'must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence.'" Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327
(1985)). Petitioner has not offered any new reliable evidence that
was not available at the time of his plea.
He has not produced
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence that was not available at the time of
his plea.
Instead, Petitioner has alleged that there is evidence
of legal innocence, not factual innocence.
15
He relies on his
assertion that he is mentally retarded and suffers from mental
illness and incapacity due to organic brain damage and other
diseases and disorders, and his counsel was ineffective for failing
to introduce the evidence of his mental disability, illness and
incapacity.
This will not save the day.
Petitioner must show
"factual innocence, not mere legal insufficiency."
Bousley v.
United States, 523 U.S. 614, 623 (1998); see Rozzelle v. Sec'y,
Fla. Dep't of Corr., 672 F.3d 100, 1012-13 (11th Cir. 2012).
Upon
review, Petitioner has not made a credible showing of actual
innocence.
Because Petitioner has not shown an adequate reason why the
dictates of the one-year limitation period should not be imposed
upon him, this case will be dismissed with prejudice as untimely.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
Petitioner's Request for Federal Evidentiary Hearing
(Doc. 25) is DENIED.
2.
Respondents' Motion to Dismiss Petition for Writ of
Habeas Corpus (Doc. 21) is GRANTED.
3.
The Petition (Doc. 1) is DISMISSED with prejudice.
4.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing this case with prejudice.
16
5.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.6
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
6.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida this 5th day of
August, 2015.
sa 7/31
c:
Charles Sacco
Counsel of Record
6
If Petitioner appeals the dismissal of the Petition, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the Petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)). Here, after due consideration, this Court will deny
a certificate of appealability.
17
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